Defendant appeals from a judgment of the Supreme Court, New York County (William Wetzel, J.), rendered
May 29, 1998, which convicted him, after a jury trial, of kidnapping in the first degree, sexual abuse
in the first degree (three counts), assault in the second degree and assault in the third degree.

Mark Dwyer, of counsel (Grace Vee and David M. Cohn, on the brief, Robert M. Morgenthau, attorney)
for respondent,

Diarmuid White, of counsel (Brendan White, on the brief, attorneys) for defendant
-appellant.

SAXE, J.

On this appeal of his conviction for kidnapping, sexual
abuse and assault, defendant Oliver Jovanovic asks us to examine certain issues regarding the application
of the
Rape Shield Law (CPL 60.42). We conclude that the trial court's evidentiary rulings incorrectly
applied the Rape Shield Law, and, as a result, improperly hampered defendant's ability to present a defense
, requiring reversal of his conviction and remand for a new trial.

The criminal charges arose
from a date between Jovanovic and the complainant which took place after weeks of on-line conversations
and e-mail correspondence. This appeal focuses on a number of statements made by the complainant in
e-mails sent to Jovanovic. In these statements, she indicated an interest in participating in sadomasochism
. Defendant's purpose in seeking to offer these statements in evidence was not to undermine complainant
's character by demonstrating that she was unchaste. Rather, it was to highlight both the complainant
's state of mind on the issue of consent, and his own state of mind regarding his own reasonable beliefs
as to the complainant's intentions.

Nevertheless, the trial court concluded that these statements
were inadmissible under the Rape Shield Law. Initially, we hold that a careful reading of the statute
discloses it to be inapplicable to much of the evidence precluded at trial. Moreover, the preclusion
of this evidence improperly interfered with defendant's right to confront witnesses. "'[C]riminal defendants
have ... the right to put before a jury evidence that might influence the determination of guilt'" (
Taylor v Illinois, 484 US 400, 408 [citation omitted]), and the trial court's discretion to exclude evidence must be "circumscribed by the defendant's constitutional rights to present a defense and confront
his accusers" (
People v Hudy, 73 NY2d 40, 57). Accordingly, we hold that a new trial is required.

The Evidence at Trial

The People's case against Jovanovic was primarily founded upon the
testimony of the complainant. She told a detailed story of becoming acquainted with Jovanovic through
communications over the Internet, both by e-mail and by so-called "instant messages"1, as
well as in a number of lengthy telephone conversations.

Their first contact took place during
the summer of 1996. The complainant, a Barnard undergraduate who was home for the summer in Salamanca
, a small town in upstate New York, went on-line and logged onto a "chat room" called "Manhattan", hoping
to find other Columbia students there. In the course of a general discussion, she received an "instant
message" from Jovanovic, and embarked upon a long, "instant message" private conversation with him.
Their first conversation quickly took on an intimate tone; for instance, in response to Jovanovic's information
that he studied molecular genetics and computational biology at Columbia and ran a small multimedia design
firm with his brother, the complainant said "I may love you, hold a sec while I check the profile."
When they shortly discovered that they both spent a lot of time in a particular building at Columbia,
the complainant referred to "destiny" and asked "want to have coffee?"

In this first conversation
, Jovanovic indicated his interest in the grotesque, the bizarre, and the occult. He mentioned Joel-
Peter Witkin, explaining that Witkin creates photographs using corpses; he mentioned Eris, the Greek
goddess of discord, and a group called the "Discordians" who, he said, try to "open people's eyes".
The complainant brought up her interest in snuff films [i.e., films in which a person is killed], and
her thoughts of making such a film herself.

Then, on October 9, 1996, the complainant sent Jovanovic
an e-mail reminding him of their previous conversation, and raised again the subjects of snuff films
and pagan rituals. He responded by e-mail (from Seattle) the next day, and she e-mailed back immediately
. His next e-mail was on October 16, 1996, by which time he had returned to New York. She responded
right away, continuing the tone of her earlier correspondence with him ("bring me anything back from
Seattle?"). He did not write again until October 20, 1996. When she responded that evening, she (among
other remarks) asked how tall he was.

He did not reply until November 10, 1996, when he asked
"As for my height, why? Are you looking to be dismembered by a tall, dark stranger, or something of
that sort? I'm sometimes strange and dark, but of average height, so perhaps you should look elsewhere
. <g>"2 When the complainant responded that same day, she wrote of the Columbia tunnels
and their appropriate ambience for a snuff film. She asked if he had any ideas for murder plots. He
responded the next day, November 11, 1996, with the suggestion that a film could be made of the true
story of Sharon Lopatka (a woman who was killed in October 1996, allegedly by a man whom she had just
met in person after developing an on-line relationship with him).

Their exchange of e-mail between
November 13, 1996 and November 14, 1996 continued discussing fantasies for snuff films, and the complainant
's purported interest in what she termed "a tall dark dismember-er."

In the complainant's e-mail
of November 17, 1996, just after midnight, she told about having dragged a girl she knew to the emergency
room after the girl was raped the previous night. The complainant's long message ended by describing
herself as distraught. Jovanovic responded shortly thereafter with his phone number and an invitation
to call if she wanted. She responded with "hey . . . is this a plot to begin dismemberment," and equivocated
about calling him. His e-mail replied "it's up to you, just realize that it is an option."

The
next night, November 18th, the complainant's e-mail "explained" to Jovanovic her connection to the girl
whom she had said was raped. The complainant told how she "fingered"3 and then spoke to "
one Luke, who was attached to one skitzophrenic (sic) stalker x-intrest (sic) d'amour." It was developed
in testimony that the complainant had initiated an on-line conversation with Luke on October 31, 1996
, and began an in-person intimate relationship with him shortly after that, and that Luke's ex-girlfriend
, Karen Kahn, became jealous. It was this ex-girlfriend, Karen, whom the complainant brought to the
hospital, following a telephone call in which Karen claimed to have been raped. Luke's trial testimony
advanced his belief that when Karen telephoned the complainant and said she had been raped, she was motivated
by a desire to interfere with his relationship with the complainant, whom he was supposed to meet with
on the night of the phone call.

After Jovanovic sent an e-mail asking for details of the story
she had told him about Karen and Luke, on the night of November 19, 1996 the complainant sent him a long
e-mail in which she provided more information about the afternoon (November 1, 1996) when she had logged
in and found e-mail from Luke, and from Karen, whose e-mail had warned her to stay away from Luke.

The complainant's e-mail to Jovanovic on November 20, 1996 asked "So Oliver, you keep mentioning film
after film, but where pray tell am I supposed to find them?" She also indicated an intense desire to
know more about him, and spoke of "too many taboos surrounding the questions I want to ask". Two hours
later he replied "Taboos are meant to be broken. <g> . . . You'll simply have to ask more questions
. Of course, that way lies dismemberment. <g>" Soon after that, still on November 20, 1996, she
e-mailed back, "I think you may just be toying with the idea of dismemberment" and told him that she
has to push herself, see how far she can take it, testing her limits. She also warned, "arms and legs
are not toys" and that "It could get sick. And just may."

After more e-mails back and forth during
the late night/ early morning hours of November 21, 1996, at about 2:30 a.m., the complainant referred
to things getting "kind of intimate," and then, at about 5:00 a.m., Jovanovic ended his message with
"Should I call you, or you call me." That afternoon her e-mail message included her phone number, with
the message that she would be home around 3:00 that night.

He called at about 3:00 a.m. on November
22nd, and they spoke for approximately four hours. According to the complainant's trial testimony, Jovanovic
invited her to see a movie with him that night, and she gave him the address of her dormitory.

The Complainant's Narrative of the Events of November 22-23, 1996

Jovanovic arrived
at 8:30 p.m. on November 22, and suggested that they get something to eat. When they finished dinner
at around 10:15, he said it was too late for the movie they had agreed upon, and asked if she wanted
to see a video at his apartment instead. She said "I don't know" -- explaining in her testimony that
although she did not want to, she has trouble being assertive. Finally she agreed. He drove to three
video rental outlets, but did not find what he wanted. He said he had some videos at his apartment,
which was located in Washington Heights, and they proceeded to drive there, arriving at about 11:30 p
.m.

Jovanovic gave her some tea, which she found to have a chemical taste, and a book of photographs
by Joel Peter Witkin, depicting corpses placed in grotesque poses. They watched a video entitled "Meet
the Feebles," in which Muppet-like characters engage in sexual or violent behavior. During the movie
, Jovanovic left the room and returned with some strips of fabric, which he placed next to the futon
they were sitting on.

When the movie was over, she said it was getting late and she should go
, but they began a conversation that ranged from the subjects of East Timor, media control of the news
, and religion, to the subject of people with multiple personalities. Jovanovic told her he had another
personality called the "Wise Philosopher" whom he can turn into when he encounters pain. To demonstrate
, he told her to twist his wrist, which she did; she testified that he appeared to be "in" a personality
that did not feel pain.

When he introduced the subject of good and evil, the complainant told
him that she did not believe that evil existed. He looked stern, and in a voice she also characterized
as "stern", told her to take off her sweater. He then repeated this directive in a louder voice. The
complainant testified that she did not know what to do, thought it was a joke, but nevertheless removed
her sweater. Then he told her to take off her pants, and she complied. He instructed her to lie down
, and he tied her legs and arms to the frame of the futon, one limb to each corner; she explained that
she did not protest because she did not know what to think.

Jovanovic went to the kitchen and
came back with some candles, including a white candle in a glass. He sat between her legs and lit the
candle in the glass. At this point, the complainant testified that she protested, asking him not to
burn her, telling him to untie her and demanding that he stop. However, when the glass was full of molten
candle wax he dumped it on her stomach. She again protested, but he waited for the glass to fill with
wax and then poured it on her stomach. Next, he pulled her panties away and dripped wax around her vaginal
area, and after her bra popped open spontaneously, he poured wax on her nipples too. Then he took some
ice cubes and placed them wherever he had poured the wax. She screamed and told him to stop, but his
response was to ask why she was screaming, and to say that suffering was a human condition. At one point
he gagged her and then blindfolded her. Next, he proceeded to bite her nipples and her collarbone.

After about an hour of this behavior, he left the apartment to move his car. When he returned, he
cut the ties, picked her up and carried her to his bed. The complainant said, "don't rape me, don't
dismember me, don't kill me." He replied, "is there anything else you don't want me to do?" She said
, "yes, don't do anything you can get arrested for." When Jovanovic responded, "do you think I'm going
to get arrested for this?" the complainant replied that he was going to have to kill her if he did not
want to get arrested. He said "that's easily enough done," and pinched her nose shut and put his hand
over her mouth for a minute, until she felt a bit dizzy.

Jovanovic then began to speak to the
complainant about the need for women to learn self-defense, illustrating his point by noting that the
only victim who was able to escape from noted murderer Jeffrey Dahmer was a person proficient in martial
arts. At some point, unclear from the complainant's narrative, he hog-tied her, so she was on her stomach
with her hands and feet tied together behind her back.

He next retrieved two batons from the
closet, turned her on her stomach, and penetrated her rectum with either a baton or his penis, causing
the complainant intense pain.

The complainant's next memory was of waking some time on Saturday
, November 23, 1996, still hog-tied. Jovanovic untied her for a time and attempted to give her some
instruction in self-defense. When she tried to run, he tied her up again.

Then, that evening
, while Jovanovic was trying to look at her genitals, the complainant found that she was able to untie
her legs, and stood up. The complainant testified that he then looked frightened. At this point, although
she said he still sought to restrain her, she continued to run and to fight him off, all the while putting
on her pants, sweater, and boots, picking up her bra, panties and a sock, unlocking the apartment door
and finally escaping.

Subsequent Events

The complainant took the subway to her
dormitory at about 10:00 p.m., fell asleep, woke up, showered, and after Luke called her at 1:00 a.m.
, she went to Luke's apartment, where she reported to him that she had been tied up, sodomized with a
stick, hit with a baton, and burned by Jovanovic. The next morning she returned to her dormitory.

On Sunday night, November 24, 1996, she logged on to the computer at her school library and retrieved
an e-mail message sent by Jovanovic the night before at 10:35 p.m. In it, he said she had forgotten
her gold chain when she left the apartment, and that he could mail it if she gave him her zip code, or
he could drop it off. He also said, "I have a feeling the experience may not have done you as much good
as I'd hoped, because you weren't acting much smarter at the end than you were at the beginning." He
closed with the words, "I hope you managed to get back all right."

The complainant sent Jovanovic
a long e-mail the following day, in which her remarks included assertions that she was "purged by emotions
, and pain," and that she was "quite bruised mentally and physically, but never been so happy to be alive
." She said "Burroughs best sums up my state . . . the taste is so overpoweringly delicious, and at
the same time, quite nauseating."

They continued their on-line communications later that day.

The Redacted Statements

With the foregoing narrative by the complainant, the
People were able to present to the jury a compelling story of a woman being drawn into a cyberspace intimacy
that led her into the trap of a scheming man. However, its compelling quality was due in part to its
one-sided and unbalanced nature. This imbalance resulted from the trial court's ruling precluding Jovanovic
from effectively challenging certain aspects of the complainant's presentation. Where he should have
been given free rein to explore the complainant's truthfulness, her accuracy in relating her experiences
and her grip on reality, he was instead precluded from inquiring into several highly relevant statements
contained in the complainant's e-mails to him.

The following discussion sets forth the portions
of the complainant's e-mails to defendant that were subject to the court's preclusion order.

First Redacted E-Mail

On November 17, 1996, in the complainant's e-mail to Jovanovic
, she told him of "dragging" a girl to the emergency room after the girl reported that she had been raped
. After further additional messages were sent back and forth between the two that same evening, on November
18, 1996, the complainant wrote to explain to Jovanovic how, over the Internet, she had first made contact
with Luke, who she described as "attached to one skitzophrenic stalker x-intrest d'amour" (sic). One
sentence was deleted from this e-mail. It read,

"So said intrest (sic
) plotted my death as well as a means of getting attention, thus the rape."

&nbsp
;

Second Redacted E-Mail

Jovanovic's e-mail of November 18, 1996 requested
to hear more details, and on November 19th, the complainant sent Jovanovic a long message relating how
she became involved with Luke. She told of "fingering" Luke to chat with, and how Luke's "x-intrest"
, Karen, was unhappy about the complainant's new friendship with Luke and sent the complainant an e-mail
warning her to stay away from him. The court deleted from this e-mail the following paragraphs, quoted
here word for word (with misspellings and other errors left intact).

"the boy calls, tells lots and lots of a life led like burroughs: heroin addicted, bisexual atheist.
My kinda comrad. so he seduced me. come to Ufm, I did[,] come to my appartment, I did[,] then he got
me.

Oh he sighed and pulled out an agonized tale of being young in Edinborough and on a field
trip for highschool...there were "very nice boys" (according to the chaperons) who worked at the hotel
, so said chaperons let luke and his teen friends hang out with the big boys for a night on the town.
Unfortunately for poor luke, one took a liking to him, (this is liking with twisted glint in the eye
mind you). yes yes, so young man took young boy (luke) to empty hotel room, tied him to bed, straddled
his ass, knife to throat, no protection, come in all the way and make it good...made it good. pull out
laugh leave him tied and naked and lock the door behind you. Luke managed to get free, had to hand in
his key to same man the next day at check out. the man smiled that sick 'nordic grin' and winked.

'oh wow' I perked up all the time thinking snuff film snuff film snuff film murder
plot present, I presented offer of assistance. Luke said sure, then told me more, about his old boyfriend
gillian, what he taught him. and about ginger and this one dominatrix who lives on the 10th floor."

Third Redacted E-Mail

Jovanovic answered, shortly thereafter
on November 19th, "[t]hen he got you? How suspenseful...," although the court precluded the first four
words, "[t]hen he got you?" The complainant's response, on November 20th, contained a further personal
confession that the court also deleted from the evidence, in which the complainant had replied,

"No duh, there's more, more interesting than sex, yes he did catch me, no sex, but
he was a sadomasochist and now I'm his slave and its (sic) painful, but the fun of telling my friends
"hey I'm a sadomasochist" more than outweighs the torment."

Fourth
Redacted E-Mail

Jovanovic's responsive e-mail on November 20th said, "You're submissive sometimes
? Should have told me earlier." The complainant's next message in reply, also on November 20th included
the following critical information, which was also redacted:

and yes,
I'm what those happy pain fiends at the Vault call a "pushy bottom"4.

While the vast majority of the electronic correspondence between Jovanovic and the complainant was
introduced into evidence, the preclusion of the foregoing statements, particularly the last three, had
an enormous impact on the defense. Basically, it left the jury with a distorted view of the events.
Moreover, in the absence of proof that Jovanovic had reason to believe, prior to their meeting, that
they both had intended to participate in consensual, non-violent sadomasochism that night, his ability
to testify in a credible manner as to this defense was irreparably impaired. Indeed, the limitation
imposed by the court served to insulate the complainant from being fully cross-examined even as to those
statements which were admitted into evidence, which evinced or implied some degree of interest in sadomasochism
.

These messages were ruled inadmissible on the ground that they were covered by the protection of the
Rape Shield Law (CPL 60.42), in that they constituted evidence of the complainant's prior sexual
conduct, having the effect of demonstrating her "unchastity". In addition to the messages themselves
, based upon the trial court's understanding of the Rape Shield Law, Jovanovic was precluded from questioning
either the complainant or Luke as to whether the two had mutually engaged in consensual sadomasochism
. Although the court ultimately permitted Jovanovic to ask Luke whether he had caused the bruise Luke
noticed on the complainant on November 23, 1996, the defense was not permitted to inquire further into
whether Luke's own conduct toward the complainant at any prior time had caused any bruising.

For the following reasons, we conclude that the
Rape Shield Law (CPL 60.42) does not support the ruling precluding Jovanovic from inquiring into
the full complement of the complainant's statements to him.

Evidence of a victim's sexual conduct shall not be
admissible in a prosecution for [a sex] offense or an attempt to commit [a sex] offense . . . unless
such evidence:

1. proves or tends to prove specific instances of the victim's prior
sexual conduct with the accused; or

2. proves or tends to prove that the victim has been convicted
of [prostitution] . . . within three years prior to the sex offense which is the subject of the prosecution
; or

3. rebuts evidence introduced by the people of the victim's failure to engage in sexual
intercourse, deviate sexual intercourse or sexual contact during a given period of time; or

4. rebuts evidence introduced by the people which proves or tends to prove that the accused is the cause of pregnancy or disease of the victim, or the source of semen found in the victim; or

5. is determined by the court after an offer of proof by the accused outside the hearing of the
jury, or such hearing as the court may require, and a statement by the court of its findings of fact
essential to its determination, to be relevant and admissible in the interests of justice

(emphasis added.)

The importance of this statute is in no way diminished by the discussion
and conclusions that follow. We fully recognize that a woman's character or reputation for chastity
is irrelevant to a charge that she was sexually assaulted. Our holding is simply that the Rape Shield
Law, by its terms, is inapplicable to the evidence the trial court held to be inadmissible.

Initially
, we hold that the redacted e-mail messages were not subject to the Rape Shield Law because they did
not constitute evidence of the sexual conduct of the complainant. Rather, they were merely evidence of statements made by the complainant about herself to Jovanovic.

The distinction between
evidence of prior sexual conduct (to which the statute expressly applies), and evidence of
statements concerning prior sexual conduct, is more than merely semantic. Direct evidence of a
complainant's conduct with others would generally be introduced (if admissible) as a basis to
infer that she had voluntarily behaved in such a way on prior occasions with others. In contrast, the
use of a statement is not so straightforward. It is frequently relevant not to prove the truth of the
matter stated, but rather, for the fact that the speaker made the statement. That is, a statement may
be relevant as proof of the speaker's, or the listener's, state of mind.

For instance, here
, the complainant's statements to Jovanovic regarding sadomasochism were not necessarily offered to prove
the truth of what she said, i.e. that she actually was a sadomasochist. Rather, much of their importance
lay in the fact that she chose to say these things to Jovanovic in the context of her electronic, on-
line conversation with him, so as to convey to him another message, namely, her interest in exploring
the subject of such activities with him.

This distinction between evidence of sexual conduct
and evidence of statements concerning past or contemplated sexual conduct has been recognized by other
jurisdictions with similar rape shield laws. For instance, in
State v Guthrie (110 NC App 91, 428 SE2d 853), a letter written by the complainant to a third
party, proposing sex, was held to be evidence of conversation, not of a sexual act, and therefore was
not barred by that state's Rape Shield Law ( see also,
Commonwealth v Killen, 545 Pa 127, 680 A2d 851, 854 [Rape Shield Law does not preclude evidence
of sexually provocative statements made by the complainant after the alleged attack, one to a man who
rode with her in the ambulance and another to the emergency room physician];
Doe v United States, 666 F2d 43 [testimony as to the content of telephone conversations between
the victim and the defendant not excluded by the rule]).

In this State, although no holding has
clearly drawn an absolute line of demarcation between prior sexual conduct and statements concerning
prior sexual conduct, the Rape Shield Law has been held inapplicable to (1) a complainant's statement
to the defendant that she "was out to get laid that night" ( see,
People v Hauver, 129 AD2d 889), and (2) a complainant's prior claims of rape ( see,
People v Harris, 132 AD2d 940, 941).
Additionally, People v Kellar (174 AD2d 848, 849, lvdenied 78 NY2d 1128) draws
the distinction between statements and conduct in discussing the circumstances under which
CPL 60.42(3) permits a defendant to rebut prosecution evidence that the victim had not engaged in
sexual conduct with others. The Kellar Court explained that in the face of testimony that the
victim was a virgin at the time of the incident,
CPL 60.42(3) entitles the defendant to offer evidence rebutting that showing; whereas, if the victim
testified that she merely told the defendant that she was a virgin, the defendant would not
be entitled to offer rebuttal evidence on that point under
CPL 60.42 ( see, People v Kellar, supra).

Were the complainant's statements
framed as mere fantasies or secret desires, rather than as reports of her prior activities, there would
have been no question that the Rape Shield Law would be inapplicable, since such statements reflect only
thoughts and not actions. Yet, in this context, the two types of statements are more similar than not
. That her communication took the form of reports about her purported experiences should not transform
a highly relevant statement into a protected one.

We therefore conclude that for all the foregoing
reasons, the e-mail statements ruled inadmissible by the trial court were not covered by the Rape Shield
Law. However, even assuming, arguendo, that no distinction could properly be made between prior conduct
and statements about prior conduct, we would still hold that the Rape Shield Law does not support
the preclusion of the e-mails at issue, because we conclude that these statements fall within a number
of the exceptions set forth within the statute.

Applicability of the Statute's Exceptions

Although the Rape Shield Law is grounded upon a recognition that evidence of a victim's
character for chastity is generally irrelevant to a rape prosecution, even the drafters of Rape Shield
legislation recognized that information about the victim's past sexual conduct is not always irrelevant
( see generally, Berger, Man's Trial, Woman's Tribulation, supra at 57-69). Indeed
, the inclusion of exceptions within
CPL 60.42 is due to our legislature's recognition of the possibility that certain types of sexual
history evidence will be relevant. The bill was specifically drafted "to strike a reasonable balance
between protection of a victim's privacy and reputation while not infringing on the defendant's right
to a fair trial based on the presumption of innocence" (Mem of Assemblyman Fink, 1975 NY Legis Ann, at
47-48). A blanket exclusion which covered clearly relevant sexual conduct evidence would unduly
circumscribe a defendant's constitutional right to cross-examine witnesses and present a defense (
see, People v Williams, supra, at 312). Consequently, for instance, "the bill deems
proof of the victim's past sexual conduct with the accused or acts of prostitution as relevant" (Mem
of Assemblyman Fink, 1975 NY Legis Ann, supra), and, accordingly, creates an exception for such evidence. By the same token, the "interests of justice" exception contained in subdivision (5) of the statute was included to ensure that relevant evidence not otherwise admissible could be introduced.

Turning to the redacted communications from the complainant to Jovanovic, even if the precluded statements
were viewed as evidence of the complainant's prior sexual conduct, they fall within several of the exceptions
contained in the statute. First, given the highly intimate nature of some of this information, the statements
, as a practical matter, should be viewed as the equivalent of "prior sexual conduct with the accused
". These statements, made to Jovanovic in the context of a relationship being developed on-line, as
part and parcel of the ongoing conversation that led up to their in-person encounter, are really part
of the complainant's verbal repartee with him, in which each participant tells the other of their interests
and preferences. Viewed with the purpose of her statements in mind, even if the Rape Shield Law were
to apply to statements, the redacted statements should therefore have been held to be admissible as falling
within the first exception to the
Rape Shield Law (CPL 60.42[1]).

The exception for past conduct with the accused is included
in the statute because a "history of intimacies" would "tend to bolster a claim of consent" (Berger,
supra at 58; see also,
People v Westfall, 95 AD2d 581, 583). The statements here, especially in view of their intimate
nature, have the same sort of potential of shedding light on the motive, intent, and state of mind of
these two people in their subsequent encounter.

Secondly, those redacted e-mail statements that
report the complainant's involvement in a sadomasochistic relationship with Luke were also admissible
under
CPL 60.42(4), the exception for evidence tending to rebut the people's showing that the accused is
the cause of "disease" of the victim. The People contended that Jovanovic's actions had caused various
bruises on the complainant. Consequently, Jovanovic should have had the right to inquire into the complainant
's statements indicating that at the time of the alleged incident she was in a master-slave relationship
with someone else, particularly since she specifically stated that this conduct was "painful". Further
, based upon this particular statement, the defense should also have been permitted to inquire of both
the complainant and Luke as to whether Luke had caused bruising to the complainant in the days prior
to the incident.

Although the wording of section 60.42(4) concededly does not specifically include
the word "injury", it is noteworthy that the Memorandum of the bill's sponsor reflects an intent to include
the concept of injury along with that of disease ( see, Mem of Assemblyman Fink, 1975 NY Legis
Ann, at 48). There is no support in the legislative history for a purposeful deletion of the word "injury
", and it would be illogical to permit one defendant to introduce evidence rebutting a showing that he
was the cause of disease in the victim, but not permit another defendant to rebut a showing that
he was the cause of the victim's injuries. No rational distinction can be made ( see,
People v Mikula, 84 Mich App 108, 269 NW2d 195). Indeed, in other jurisdictions it has been
held that due process rights must encompass the right to offer evidence providing an alternative explanation
for evidence presented by the state to prove that the accused caused a physical condition arising from
the charged crime ( see, e.g.,
United States v Begay, 937 F2d 515, 523;
State v Cressey, 137 NH 402, 628 A2d 696).

Third, given the relevance of the redacted
statements to the issues presented to the jury, even if none of the statute's other exceptions covered
the complainant's statements to Jovanovic, the "interests of justice" exception of
CPL 60.42(5) would be applicable. That exception was included in order to give courts discretion
to admit what was otherwise excludable under the statute, where it is determined that the evidence is
relevant ( see, Mem of Assemblyman Fink, 1975 NY Legis Ann, at 48, supra).

Even
if no other exception applied, the precluded communications from the complainant to Jovanovic were highly
relevant. The defense did not seek to introduce them to demonstrate the complainant's "unchastity" and
thereby impugn her character or her honesty. Instead, the fact that the complainant made these statements
to Jovanovic is relevant to establish that she purposefully conveyed to Jovanovic an interest in engaging
in consensual sadomasochism with him.

Because the jury could have inferred from the redacted
e-mail messages that the complainant had shown an interest in participating in sadomasochism with Jovanovic
, this evidence is clearly central to the question of whether she consented to the charged kidnapping
and sexual abuse5. The People emphasize that it is not whether she initially consented that
is relevant, but whether she withdrew her consent and whether defendant continued to act despite the
withdrawal of consent. However, the strength of the evidence as to the extent to which the complainant
initially indicated to Jovanovic an interest in participating in sadomasochism with him is relevant
to a determination of whether that consent was withdrawn.

Furthermore, the e-mails Jovanovic
received from the complainant, particularly her statements, "now I'm his slave and its (sic) painful,
but the fun of telling my friends 'hey I'm a sadomasochist' more than outweighs the torment," and "yes
, I'm what those happy pain fiends at the Vault call a 'pushy bottom,'" could illuminate Jovanovic's
understanding and beliefs as to the complainant's willingness to participate in sadomasochism with him
( see,
Doe v United States, 666 F2d 43), and, as such, are also relevant to Jovanovic's state of mind
.

The redacted e-mail messages were also highly relevant to establishing the defense that the
complainant concocted her accusation in order to explain to Luke either her failure to meet him that
night, or her participation in sadomasochism with another man. Moreover, direct evidence that the complainant
had a sadomasochistic relationship with Luke, to which evidence the Rape Shield Law would otherwise apply
, should also have been admitted, under the interests of justice exception to the statute. Even in Professor
Vivian Berger's ground-breaking article,
Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom (77 Colum L Rev 1, 98-99), in which
she discussed the need for Rape Shield laws, Professor Berger included among her suggested exceptions
to rape shield statutes a situation where the evidence arguably showed that the complainant had a motive
to fabricate the charge. Furthermore, although our Legislature did not include such an exception in
this State's Rape Shield Law, the United States Supreme Court has held that in a rape/sodomy prosecution
, evidence of the complainant's relationship with another man may be highly relevant to establish the
defense that she lied about the consensual nature of the charged sexual activities out of fear of jeopardizing
that other relationship ( see, Olden v Kentucky, 488 US 227).

While defendant was permitted to cross-examine the complainant
and Luke so as to elicit that their relationship was "intimate", he was precluded from inquiring into
the sadomasochistic nature of that connection. The ruling almost completely prevented Jovanovic from
presenting the viable defense that the complainant had reason to fabricate the nonconsensual and violent
elements of her story. Only through full cross-examination of the complainant, including the nature
of her relationship with Luke, could defendant have "'"expose[d] to the jury the facts from which [it
] ... could appropriately draw inferences relating to the reliability of the witness"'" ( see,
Olden v Kentucky, supra at 231, quoting
Delaware v Van Arsdall, 475 US 673, 680, quoting Davis v Alaska, 415 US 308, 318; see also,
State v Colbath, 130 NH 316, 540 A2d 1212, 1217). That is, only if full inquiry were permitted
into her assertion that she was in a sadomasochistic relationship with Luke could the jury have a basis
from which to infer that the complainant had a motive to fabricate her accusation of a forcible, violent
assault, in order to avoid any negative response from Luke resulting from her voluntary participation
in sadomasochism with another man.

In addition, redaction of the long narrative in the second
e-mail, in which the complainant told Luke's story of a sadistic sexual encounter, was not justifiable
under the Rape Shield Law, as it did not report past conduct on the part of the complainant. In any
case, it was highly relevant to the attempted defense that the claim of attack was concocted, particularly
in view of the similarity between that narrative and Jovanovic's complained-of conduct on the night in
question.

We conclude that the trial court's rulings erroneously withheld from the jury a substantial
amount of highly relevant, admissible evidence. Furthermore, these errors were of constitutional dimension
.

The Sixth Amendment Right to Confront Witnesses

Cross-examination "is critical
for ensuring the integrity of the fact finding process" and is "the principal means by which the believability
of a witness and the truth of his testimony are tested" (
Kentucky v Stincer, 482 US 730, 736;
Davis v Alaska, 415 US 308, 316). The trial court's redaction of the complainant's statements
to Jovanovic, and its consequent limitation on the defense's cross-examination of the complainant regarding
her interest and participation in sadomasochism and her relationship with Luke, resulted in a violation
of defendant's Sixth Amendment right to confront the People's primary witness ( see,
Olden v Kentucky, 488 US 227; see also,
State v Colbath, 130 NH 316, 540 A2d 1212, 1217).

Admittedly, the constitutional guarantee
of the right to confront the prosecution's witnesses is not absolute, and may be circumscribed by statutory
evidentiary restrictions (such as the Rape Shield Law) which serve "the legitimate demands of the

While even a proper application of the Rape Shield Law may interfere to an extent with
the defendant's right to confront witnesses, it must be remembered that, generally, the evidence precluded by such laws, of other, unrelated sexual conduct by the complainant, is of little or no probative value
. "To the extent that shield statutes limit the accused from unfairly attacking the morality of a rape victim, they are unobjectionable" (
Tanford & Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U Pa L Rev 544, 5
89 [1980]). Where the precluded evidence is highly relevant, however, the deprivation of fundamental
constitutional rights cannot be justified merely by the protection of the complainant from an attack
on her chastity.

The Prejudice to the Defense

The court's erroneous preclusion
of the e-mail messages and other relevant, admissible evidence from the jury's consideration was particularly
egregious, in view of the People's approach in presenting the case against Jovanovic. He was depicted
as a monstrous sadist, scanning the Internet for unwary victims, preying on unknowing, naive innocents
. In contrast, while the People, and indeed, the complainant, both acknowledged that she had flirted
with Jovanovic in her messages, trying to impress him with her wit and intelligence, the complainant
was basically portrayed as naive, overly trusting, overly polite and ill-informed.

The excluded
e-mail stating that the complainant and Luke had a master-slave relationship that included the infliction
of pain, and the e-mail in which the complainant referred to "the pain fiends at the Vault" and to herself
as a "pushy bottom," i.e. a masochist who pushes the dominant partner to inflict more pain than intended
, would have enabled Jovanovic to provide a counterpoint to the People's portrayal of the complainant
and avoid the prejudice potentially created by the unbalanced portrayal. It would also have permitted
Jovanovic to effectively place the complainant in a somewhat less innocent, and possibly more realistic
, light. For instance, the complainant made certain remarks in her e-mails, such as "rough is good,"
and "dirt I find quite erotic," for which she provided the jury with completely innocent explanations
. Defendant was unable to plausibly offer alternative, more suggestive readings of such e-mail remarks
, as long as the jury was unaware of the extent of the complainant's interest in sadomasochism.

Jovanovic should have been given the opportunity to inquire as to what the complainant meant by her
remarks regarding her participation in sadomasochism. If, in fact, they were exaggerations, or flights
of fancy, their extreme nature would be relevant to the issue of the complainant's veracity and reliability
. If they were exact statements of fact, Jovanovic should have been permitted to bring to the jury's
attention the possibility that the person the complainant had referred to as her "master" might have been unhappy about her experiencing sadomasochism with another "master". He should also have had the
opportunity to explore the complainant's intention and purpose in disclosing to him that she was involved
in such a relationship.

As the case stood, Jovanovic was precluded not only from bringing out
the degree to which the complainant seemed to be inviting sadomasochism, but from exploring the possibility
that the complainant was a less reliable narrator of events than she appeared to be at trial. For instance
, the prosecutor was able to repeatedly ask the rhetorical question, "Why would she lie?" while the defense
was unable to point to an evidentiary basis for any plausible reason, although more than one existed
(e.g., her "master" might have been unhappy with her had she told him her conduct with Jovanovic was
consensual; or, she made a practice of creating elaborate sexual fantasies). The prosecutor was also able to remark in summation, without any possible contradiction, that if the complainant had wanted to
engage in sadomasochism, she could have said so in her e-mails.

Finally, the erroneous ruling
in effect gutted Jovanovic's right to testify fully in his own defense, since it prohibited him from
offering the jury any evidence justifying an asserted belief that the complainant had indicated a desire
to participate in sadomasochism with him.

In light of the degree to which the defense was hampered
, both in demonstrating that the complainant had consented to participating in sadomasochism, and in
challenging the complainant's reliability and credibility as a witness, the conviction must be reversed
in its entirety. Upholding the conviction on the assault charges, as the dissent suggests, would ignore
the prejudice resulting from Jovanovic's inability to adequately challenge the complainant's credibility and reliability. We are unable to conclude that the error was harmless.

Other Evidentiary
Errors:

Limitation of Inquiry into Karen's Claim of Rape

At trial, the complainant
testified to her part in bringing Karen to the hospital when Karen said she had been raped. The court
also permitted Luke to offer his belief that Karen's claim was motivated by her desire to interfere with
his relationship with the complainant. However, following a pre-trial hearing at which Karen testified
, Jovanovic was prevented from inquiring before the jury what the complainant knew about what had actually
occurred to Karen. In particular, he was unable to inquire into her e-mail message that

"said intrest (sic) plotted my death as well as a means of getting attention, thus the rape."

The court determined in its pre-trial hearing that Karen had not actually made a false rape
claim, but rather, had expressed uncertainty as to whether the event would fall within the definition
of rape. The court therefore concluded that the complainant could not be said to have been a party to
a false rape claim, and prohibited all inquiry into this e-mail message. This ruling, too, was an improper
limitation of the defense.

As a result of the court's prevention of further inquiry, the jury
was left with only the complainant's initial e-mail statement about Karen having been raped, including
the complainant's assertion at trial that she doesn't "understand violence". Preventing Jovanovic from
cross-examining the complainant regarding the meaning of the words "[Karen] plotted my death as well
as a means of getting attention, thus the rape," meant he was unable to cross-examine the complainant
regarding the puzzling interaction between Karen and the complainant, whether they treated each other
as friends, rivals, or strangers. The jury was left to arrive at the possible false conclusion that
the complainant had acted as a good Samaritan and assisted an acquaintance who had been raped. While
these points were not central to the elements of the charged crimes, by preventing Jovanovic from seeking
to clarify the complainant's misinformation, he was unable to call into question the resultant image
of the complainant as responsible, trustworthy, accurate and innocent.

The Spectator Article

In addition, the trial court erred in permitting the People to place in evidence
the full text of a news article from the Columbia University campus newspaper, the Spectator,
reporting the story of a woman named Sharon Lopatka, who in October 1996 was killed by a man with whom
she had initiated an on-line relationship.

The foundation for the prosecutor's use of the article
was Jovanovic's reference, in one of his e-mails, to a Spectator article about Sharon Lopatka
, in response to the complainant's request for suggested plots for a snuff film. On the basis of that
reference, the trial court permitted the prosecutor to read into the record the full text of the article
in the course of the complainant's direct examination, apparently on a theory that judicial notice could
properly be taken of the article. Defense counsel was not permitted any voirdire on the
issue of whether this article had been the subject of an on-line conversation between the complainant
and Jovanovic, or indeed what the complainant knew of the story.

Had counsel been permitted
a brief voirdire, the court would have found that, as the complainant testified immediately
after the article was placed in evidence, in fact she had not understood Jovanovic's reference to have
been to that particular article. Consequently, there was no proper foundation for its admission into
evidence. Nor was the introduction of the complete article into evidence justified by the concept of
"judicial notice", which applies to the introduction of indisputable facts and matters of common knowledge
( see, Richardson, Evidence ß 2-201 etseq. [Prince 11th ed]).

Moreover,
its prejudicial impact was not properly considered. The article told the story of Sharon Lopatka's on
-line acquaintance with a Maryland man whom she had informed of her desire to be tortured and killed,
and about her ultimate death, allegedly at the hands of this man. The introduction of the full text
was unnecessary, and because of its potentially inflammatory effect under the circumstances, its introduction
was improper, and only served to compound the prejudicial impact of the other errors.

Accordingly
, the judgment of the Supreme Court, New York County (William Wetzel, J.), rendered May 29, 1998, convicting
defendant, after a jury trial, of kidnapping in the first degree, sexual abuse in the first degree (three counts), assault in the second degree and assault in the third degree, and sentencing him to a term of
15 years to life on the kidnapping conviction concurrent with lesser sentences on the remaining convictions
, should be reversed, on the law, and the matter remanded for a new trial.

All concur except
Mazzarelli, J.P.

who concurs in part and dissents

in part in an Opinion.

MAZZARELLI
, J.P. (concurring in part and dissenting in part)

While I agree with the majorityís conclusion
that a new trial is required because the trial court misapplied the Rape Shield Law when it precluded
material evidence which may have affected the conviction on the kidnapping and sex abuse counts, a different
perspective informs my analysis. Further, I would affirm the defendantís conviction on the assault charges
.

I agree, for the reasons set forth in the majority opinion, that the introduction of the full
text of the Spectator article was improper. I share the view that the erroneous admission of
this evidence had an enormous prejudicial impact on the defense. With respect to the redacted e-mails
, I would also find that the complainantís statements concerning her interest in sado-masochistic practices
should have been admitted, because the Rape Shield Law, which is designed to preclude introduction of
"evidence of a victimís sexual conduct", is not meant to exclude statements of interest in
sex ( see,
People v Kellar, 174 AD2d 848, 849, lvdenied 78 NY2d 1128;
People v Hauver, 129 AD2d 889, 890). Further, even were these statements to be covered by the
statute, I would find that they should have been admitted under the interests of justice exception set
forth in
CPL 60.42(5), because they are relevant to both the complainantís state of mind and defendantís perception
of her thinking. The complainantís discussion of these topics in her electronic conversations with the
defendant preceding their date was necessary to provide the jury with an accurate factual narrative.

However, I disagree with the majority that the complainantís conversations concerning sex with other
individuals were improperly excluded under
CPL 60.42, and I would also find that the third redacted November 20th e-mail was properly
redacted because it concerned a direct statement relating to the complainantís prior conduct, her sado
-masochistic relationship with her boyfriend. This redaction was also appropriate because the transmission
described behavior which would serve only to disparage the complaining witnessís reputation.

The defense argues that the third redacted November 20th e-mail should have been admitted
in its entirety pursuant to 60.42(4), to support a claim that the complaining witnessís boyfriend could
have been the source of her injuries. I disagree. The defense was not prevented from putting this theory
before the jury as it was allowed to question the complaining witnessís boyfriend himself as to whether
he had inflicted any bruising upon the complainant in the days preceding the incident. This is the only
bruising relevant to this case. The determination to limit inquiry to this issue was not an improvident
exercise of discretion, and again comports with the purpose of the Rape Shield Law. This is especially
true when viewed within the context of the main theory articulated by the defense, which is that the
alleged violent acts did not take place. Based on this position, details of prior consensual, violent
behavior were properly redacted from the e-mail as they would be irrelevant to the defense on the kidnapping
and sexual abuse counts.

Unlike the majority, I would not find the third redacted November
20th e-mail admissible under
CPL 60.42(5), the interest of justice exception to the Rape Shield Law.
Since CPL 60.42(5) is designed to allow the introduction of material which has been deemed presumptively
inadmissible, the proffered evidence merits careful scrutiny ( see,
Berger, Manís Trial, Womanís Tribulation: Rape Cases in the Courtroom, 77 Colum L Rev 1, 34
). Given the complainantís right to sexual self-determination, I would find that the inflammatory nature
of the evidence of her prior sexual conduct would, in the eyes of the jury, outweigh the probative value
of this evidence. Presenting this information could mislead the jury to conclude that the complainant
was more likely to consent to the charged sexual offenses because she had previously consented to similar
, violent acts ( see,
People v Williams, 81 NY2d 303 [precluding evidence that complainant had formerly engaged in
group sex in a gang rape prosecution]).

Further, the majority states that, "the strength
of the evidence as to the extent to which complainant initially indicated to Jovanovic an interest in
participating in sadomasochism with him is relevant to a determination of whether that consent
was withdrawn" (emphasis in original). I strongly disagree. The encounter should be evaluated
on the basis that the complainant, as any person engaging in sexual activities, had a continuing legal
right to withdraw her consent to any of the actions taking place in Jovanovicís apartment. The only
evidence relevant to that issue is that which relates to the events in question.

The Rape
Shield Law was expressly drafted for the purpose of protecting those persons who are sexually active outside a legally sanctioned relationship. It serves the very important policy objective of removing
certain impediments to the reporting of sex crimes. Specifically, the law was drafted to encourage victims
of sex offenses to prosecute their attackers without fear that their own prior sexual activities, regardless
of their nature, could be used against them at trial. In enacting the Rape Shield Law, the legislature
sought to prevent muddling the trial with matters relating to a victimís prior sexual conduct which have
no proper bearing on the defendantís guilt or innocence, but only serve to impugn the character of the
complainant and to prejudice the jury. To limit its applicability and protections as the majority holds
would only serve to turn the clock back to the days when the main defense to any such charge was to malign
the complainant. Here, where a victimís sexual preferences are widely disapproved, it is crucial that
evidentiary determinations be made with heightened concern that a jury may act on the very prejudices
that the statute seeks to exclude.

Additionally, I would affirm the defendantís convictions
for second and third-degree assault.
Penal Law ß 120.05(2) provides that a person is guilty of second-degree assault when, "[w]ith
intent to cause physical injury to another person, he causes such injury to such person ... by means
of a deadly weapon or a dangerous instrument", in this case by scalding the complaining witness
with hot wax.
Further, Penal Law ß 120.00(1) provides that a person is guilty of third-degree assault when &quot
;[w]ith intent to cause physical injury to another person, he causes such injury to such person"
, here by biting the complaining witness. As the majority correctly notes, neither statutory section
provides for a consent defense, nor do these sections list lack of consent as an element to be proven
by the prosecution ( cf.
Penal Law 120.05[5] ["without consent" is an element of the offense];
Penal Law 130.05 [consent established as a defense to various degrees of sexual abuse crimes]). While several New York cases, decided over 25 years ago, have indicated that consent, if intelligently
given, can be a defense to a charge of assault (
People v Steinberg, 190 Misc. 413, 416-417 [assault charge sustained where nurse purported to
vaccinate people against smallpox but injected only water]; seealso,
People v Freer, 86 Misc2d 280 [third-degree assault charge sustained in altercation between football
players which took place after players got up from a pile-up];
People v Lenti, 44 Misc2d 118 [indictment for third degree assault after fraternity hazing was
sustained since the students did not consent to physical harm]), this rule has not been crystallized
in this State. Moreover, a number of cases from other jurisdictions have held that the consent defense
is not available to an assault charge in the context of sado-masochistic activities ( seegenerally
,
People v Samuels, 250 Cal App 2d 501, 58 Cal Rptr 439, certdenied 390 US 1024
[defendant charged with assault arising from sado-masochistic activities could not rely on consent defense
];
Commonwealth v Appleby, 380 Mass 296, 402 NE2d 1051 [same];
Iowa v Collier, 372 NW2d 303 [same]). Given the facts of this case, I would find that the court
ís instruction that consent was not a valid defense to the assault charge was not error.

Further
, despite the evidentiary errors which require a new trial on the kidnapping and sexual abuse counts,
I would find the complaining witnessís testimony was sufficient to support both of these convictions
(
People v Arroyo, 54 NY2d 567, certdenied 456 US 979), and, in the circumstances
, hot candle wax was appropriately considered a dangerous instrument (
Penal Law ß 10.00[13]). Moreover, the complainantís testimony was corroborated by a neighbor
who heard sounds as if someone were "undergoing root canal" from defendantís apartment at the
time in question, by the complaining witnessís prompt outcries to five individuals, some of these individuals
í observations of the complaining witnessí injuries, the lab results as to her clothing, and the e-mails
sent between the complaining witness and defendant subsequent to the incident. I find no basis to disturb
the juryís determination to credit this testimony (
People v Prochilo, 41 NY2d 759).

In addition to dissenting from portions of the majority opinion, I am compelled to write separately to emphasize the fundamental importance of the Rape Shield
Law, which is designed to assure that a defendant is not allowed to evade responsibility
for his criminal acts by impugning the reputation of a complainant.

Footnotes

(1) "Instant
messages" differ from e-mail in that they are used only when both people are on line simultaneously,
and the messages, when sent, appear directly on the computer screen of the recipient, rather than going
to a "mailbox" for later retrieval.

(2) <g> is used to mean "grin" in on-line shorthand
.

(3) The complainant used the word "fingered" to indicate initiating an on-line conversation
with a person she didn't previously know, whose user ID she obtained from a Columbia on-line ID directory
.

(4) The defense explains that The Vault is a club catering to sadomasochists, and a "pushy
bottom" is a submissive partner who pushes the dominant partner to inflict greater pain.

(5
)There is no available defense of consent on a charge of assault under
Penal Law ßß 120.00[1] and 120.05[2] ( contrast,
Penal Law ß 120.05[5] [where lack of consent is an element).Indeed
, while a meaningful distinction can be made between an ordinary violent beating and violence in which both parties voluntarily participate for their own sexual gratification, nevertheless, just as a person
cannot consent to his or her own murder ( see,
People v Duffy, 79 NY2d 611), as a matter of public policy, a person cannot avoid criminal responsibility
for an assault that causes injury or carries a risk of serious harm, even if the victim asked for or
consented to the act ( see, e.g.,
State v Brown, 381 A2d 1231, 1232 [NJ Super];
People v Samuels, 58 Cal Rptr 439, 447, certdenied, 390 US 1024;
Commonwealth v Appleby, 380 Mass 296, 402 NE2d 1051;
Iowa v Collier, 372 NW2d 303). And, although it may be possible to engage in criminal assaultive
behavior that does not result in physical injury ( see,
Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law Article 120, at 119)
, we need not address here whether consent to such conduct may constitute a defense, since the jury clearly
found here that the complainant was physically injured. Defendant's claim that there is a constitutional
right to engage in consensual sadomasochistic activity is, at the very least, too broad, since if such
conduct were to result in serious injury, the consensual nature of the activity would not justify the
result.